No Right to Emergency Accommodation for Homeless Families in Ireland

This note will briefly examine a string of recent High Court decisions concerning local authorities and their statutory responsibilities to provide emergency accommodation to homeless families.

The cases concerned are:

  • Mulhare v Cork County Council [2017] IEHC 288
  • Middleton v Carlow County Council [2017] IEHC 528
  • Tee v Wicklow County Council [2017] IEHC 623
  • C v Galway County Council [2017] IEHC 784

Despite their different facts, when considered together the cases display a very clear trend:

the courts appear extremely reluctant to interfere or second guess the determinations of local authorities in the discharge of its functions relating to social housing and in particularly in the provision or refusal of emergency accommodation to families who present homeless and roofless.

Middleton v Carlow County Council, Tee v Wicklow County Council and C v Galway County Council were high court judicial review cases brought by Mercy Law Resource Centre, and each case involved the Councils refusal of emergency accommodation to families. This reluctance of the Court to interfere with the Council is exemplified by the Court’s consistent use of the O’Keefe deferential standard of review. This is significant as it has typically been reserved for decisions implicating “areas of special skill and knowledge, such as planning and development.” This trend might make successful challenges to exercises of statutory discretion considerably difficult, unless a decision is manifestly unreasonable or taken in bad faith.

Deference to Housing Authorities in Discharge of Statutory Functions

Mulhare involved a challenge to the refusal of Cork County Council to provide for alternative accommodation more appropriate and accessible to the severe physical and medical needs of the applicant and her mother. The applicants also sought accommodation sufficiently proximate to the hospital they attended.  It was not disputed that the applicant’s current accommodation was deeply unsuitable for their needs. It was also accepted that the Council had offered to carry out refurbishment works to adapt the property to make it more accessible. The Court refused to grant an order of mandamus to provide housing to the applicants, or to order they be prioritised in the allocation of accommodation. In doing so, the Court strongly emphasised the expertise of the Council and the comparative lack of judicial competence over issues concerning the allocation of housing. Baker J. held that while the allocation of housing by a local authority must be done

“in accordance with the scheme of priorities and based on a reasonable and reasoned consideration of an application”, it was ultimately a matter within the “competence and expertise of the housing authority and it is not the function of the court to direct how that policy is to be applied in any particular case.”

A similarly deferential approach was taken in Middleton, which concerned a challenge to the local authority’s determination that the applicant was not homeless under s.2 of the Housing Act 1988. The applicant argued that they met the definition of being “homeless” as provided for in the Act and thus eligible for emergency accommodation pursuant to s. 10 of same. The Respondent in turn argued that the applicants were not homeless as they could reasonably be expected to use alternative accommodation, in this case a family members’ home. Expressly citing Mulhare, the Court emphasised the need for deference when reviewing decisions of the local authority. Noting that s.2 and s.10 of the 1988 Act provide the Council with statutory discretion, the Court stated its own role “is limited”.

The Court decided that the appropriate standard of review was that set out in O’Keefe v An Bord Pleanala and is a very deferential standard. Under this standard, decisions of a statutory body will not be quashed unless they are ”fundamentally at variance with reason and common sense”, “indefensible for being in the teeth of plain reason” or “flagrantly” disregarded common sense. This standard meant that the Courts jurisdiction was limited to reviewing “whether there was a rational basis for the decision of the respondent in the context of the provisions of the Act of 1988.”  The Court held the Respondent’s determination that the applicant was not homeless and that she could rely on family and friends for accommodation was not fundamentally irrational despite the applicant’s strenuous insistence that she could not do so and was living in a tent.

The Court in Tee v Wicklow County Council also applied the deferential O’Keefe standard, holding that the discretion of the Council could only be displaced where it was “arbitrary or capricious manner or in a manner that flies in the face of fundamental reason and common sense.” The Court added that in dealing with issues such as the homeless crisis the Council “dedicates particular officers to deal with this issue on a daily basis who clearly possess significant expertise in this area to which the court should extend considerable deference.” The Court held that the Respondent’s conclusion that the applicants were not homeless because their grandmother has a home in Malaysia was not at “variance with fundamental reason and common sense.” This case has been appealed to the Court of Appeal.

Similarly, in C v Galway County Council which involved a single mum with 5 children, including one child who has special needs and attending a specific school to meet his needs. This resulted in daily travel of 100km to access education. She was offered accommodation 100km away and she refused this offer. The Council then withdrew all offers of emergency accommodation. The Courts refused our application. The Court stated that it “should be slow to interfere with the decision of expert administrative tribunals”, implying that the Respondent was such a body.

Conclusion

These cases clearly show the gap of legal protection for families who are homeless as there is no right to emergency accommodation in Irish Law.

 

 

 

 

 

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